WA organic farmer loses genetically modified canola fight in court

In a landmark court decision, a judge has ruled against a West Australian organic farmer who was suing his neighbour for allegedly contaminating his farm with genetically modified canola.

Steve Marsh was suing former friend Michael Baxter in the WA Supreme Court, claiming he lost organic certification for more than half of his farm after GM canola drifted onto his land from Mr Baxter's property.

Organic farmer Steve Marsh has lost his court case against neighbour Michael Baxter over GM crop contamination. Photo: Robert Gunstone

In 2010, Mr Marsh's Kojonup oats, rye and sheep farming property, southeast of Perth, was certified organic by the National Association for Sustainable Agriculture Australia.

But he alleged GM canola blew 1.5 kilometres inside his fence, which caused him to lose his certification.

Mr Baxter claimed when he planted the GM canola, he followed all regulations on buffer zones and notified his neighbours.

After a three-week hearing, which is believed to be the first of its kind in the world, Justice Kenneth Martin reserved his decision, and delivered his findings on Wednesday in favour of Mr Baxter.

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In his judgment summary, Justice Martin said although Mr Marsh and his wife brought two causes of action against Mr Baxter - common law negligence involving the breach of a duty to ensure there was no escape of GM material, and the tort of private nuisance - they claimed only financial loss.

"They did not claim to have suffered any physical damage or injury to themselves, to their animals or to their land at Eagle Rest," he said.

Evidence at trial was that Roundup Ready (RR) canola swathes were harmless to animals, people and land even if consumed.

"GM canola only posed a risk of transferring genetic material if a canola seed germinated in the Eagles Rest soil ... and then later cross-fertilised through its pollen being exchanged with another compatible species," Justice Martin said.

"There was no evidence at the trial of any genetic transference risks posed by the RR canola swathes blown into Eagle Rest at the end of 2010.

"The Marshes had never grown canola upon Eagle Rest."

Justice Martin noted that in 2011, eight GM canola plants were found and removed on the property and there were no others in subsequent years.

The Marshes still lost their organic certification.

But Justice Martin said it had not been shown there had been "any reasonable interference" by Mr Baxter, who he said had used well-accepted harvest methodology.

"Mr Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing), which was entirely orthodox in its implementation," he said.

"Nor could Mr Baxter be held responsible, in law, for the reactions to the incursion of the Marshes' organic certification body, NCO, which in the circumstances presented to be an unjustifiable reaction to what occurred."

Outside court, Mr Baxter said justice had been done and hoped the case provided some certainty for other GM farmers.

"It's been three years of going through this and finally we've got the right result," he said.

Mr Marsh said it was too early to say whether he would appeal the decision and said he still had to read more thoroughly through the 150-page judgment.

Greens MLC Lyn McLaren said WA laws had "failed a fairness test".

“This is a saddening result for Steve Marsh and non-GMO farmers holding their breath in hopes of a defence against Monsanto," she said.

“It is clear that GM farming cannot co-exist with organic farming when voluntary regulation practices are ignored. What we have seen in this court case is an undeniable dismissal of voluntary regulations that could have prevented the contamination of Steve Marsh’s organic crops.

“The judgment comes at great cost to the Marsh family and non-GMO farmers everywhere.

“The Greens will continue to work toward a fairer system were one farmer isn’t forced to battle his neighbour. There must be a better way”.